Principles for decision making | ACMA

Principles for decision making

Introduction

This paper provides information about the principles used by the Australian Communications and Media Authority (ACMA) when making administrative decisions.

Background

When making decisions of an administrative character, the ACMA must comply with the requirements imposed upon it by the Administrative Law package. This includes both common law and statutory requirements. In this document, decision-makers are either referred to as 'ACMA', encompassing the Chair and Board Members, or 'ACMA Officers', being officers to whom powers have been delegated under the various Acts and subordinate legislation administered by the ACMA, including the Australian Communications and Media Authority Act 2005, the Radiocommunications Act 1992 and the Telecommunications Act 1997 (the Acts).

Principles governing proper decision-making

Under the Administrative Law package, there are a number of general legal principles that apply to the making of decisions of an administrative character by ACMA Officers, including:

  1. The decision must be within a power properly conferred under the Acts upon the decision-maker.
  2. A decision-maker must consider all matters which are relevant to the making of the decision and not take into account matters which are not relevant to the making of the decision.
  3. A decision-maker must not make a decision or exercise a power or discretion in bad faith or for an improper purpose.
  4. A decision-maker must ensure that findings of fact are based on evidence.
  5. Decisions must be reasonable.
  6. Those who may be affected by a decision must be accorded procedural fairness, which includes the principles of natural justice.
  7. A decision-maker must properly consider the application of government policy.
  8. A decision-maker must not exercise a discretionary power at the direction of another person.

More information about each of the above principles is set out below.

1. The decision must be made within power

Some of the powers in the Acts, while they are discretionary, are subject to specific legislative restrictions which must be met before the power can validly be exercised. For example, before the ACMA can issue an apparatus licence, section 99 and subsection 100(1) of the Radiocommunications Act 1992 requires the applicant to submit an application in writing. Other provisions of the Acts may require the ACMA to do something before the power can be exercised, for example, under subsection 100(4) of the Radiocommunications Act 1992, the ACMA must take into account the effect of the device operated under an apparatus licence on radiocommunications. Other provisions may be less complex, such as limitations on the exercise of the power in certain circumstances. For example section 104 of the Radiocommunications Act 1992 limits the circumstances in which a licence, inconsistent with the Australian Radiofrequency Spectrum Plan or a relevant band plan, can be issued. Similarly, there are various provisions in the Telecommunication Act 1997, which require the Australian Competition and Consumer Commission and/or the Telecommunications Industry Ombudsman to be consulted, and their views to be taken into account, before the ACMA can make a particular decision. ACMA Officers must comply with these limitations and restrictions prior to the making of a decision.

An additional requirement in the making of a decision of an administrative character, is that the ACMA Officer concerned must hold the necessary delegation from the ACMA to make that particular decision. An instrument of delegation signed on behalf of the ACMA itself normally refers to a particular position number in the ACMA and a particular provision contained in the Acts that the ACMA is delegating to the occupants of those positions. Prior to the making of a decision, ACMA Officers must check whether they are the occupant (either permanent or temporary) of an actual position referred to in the instrument of delegation, and that the position has been given the authority to make decisions under the relevant section of the Acts.

If decision-makers fail to abide by legislative requirements, such as the ones referred to above, or to exercise a decision without the proper delegation, the decision, and any action taken by the ACMA, is unlawful and is capable of being successfully challenged in the Courts.

2. Relevant considerations

When the decision-maker has determined the facts of a particular case, he or she is required to give all relevant facts or issues full and proper consideration and to ignore any irrelevant considerations. These relevant considerations may be expressly stated in a provision of the Acts or are capable of being deduced in the context of the purposes and objectives of the Acts:

a. Matters which the ACMA is expressly required by the Acts to consider

These are matters that are specified in the Acts.  For example, paragraph 100(4)(b) of the Radiocommunications Act 1992 specifies that the ACMA must have regard to any effect that the proposed apparatus licence may have on other radiocommunication services.

b. Broad unguided discretions

An example of a broad unguided discretion is the ACMA's power to specify conditions in a licence under paragraph 107(1)(g) of the Radiocommunications Act 1992. This requires the ACMA to ensure that a decision takes into account the objects of the Radiocommunications Act 1992, the overall scheme of the Radiocommunications Act 1992, and functions and duties of the ACMA. The discretion is required to be exercised to promote the objects of the Radiocommunications Act 1992, set out in section 3, and be consistent with the overall scheme of the Radiocommunications Act 1992 such as matters concerning forward planning of the spectrum, interference between users and uses of the spectrum, and efficient and effective use of the spectrum.

Therefore, in relation to unguided discretionary decisions, what constitutes a 'relevant consideration' from a legal perspective depends on the nature of the power or the discretion itself in the context of the Acts, and also on the particular circumstances in which the power or discretion is exercised. A relevant consideration must be logically capable of influencing the decision to be made. Relevance is understood by reference to the link between the matter being decided and the consideration being taken into account. This is assisted by taking into account the Act as a whole, including the objects of the Act.

However, a failure to take a relevant consideration into account will not always result in a Court finding that an error of law has occurred which will result in the administrative decision being overturned. Such an error would only arise if the consideration is a matter which is so important that the decision-maker is required to have regard to it. Clearly, there are some matters set out expressly in the Acts that are important to the decision, but there are also a number of other matters set out in the Acts, to which the decision-maker may have regard, but is not necessarily required so to do. An example of these are frequency assignment certificates, referred to in subsection 100(4A) of the Radiocommunications Act 1992, to which the ACMA may have regard. In addition, there may be other matters not referred to in the Acts which are relevant and may be taken into account, but are not so important that it would be an error of law to not have regard to them.

The decision-maker must not be influenced to make a particular decision in a particular way. As long as all relevant matters are given full and proper consideration, the weight to be given to the matter which influences the final decision, is a matter for the decision-maker to decide. (See Steps in Making a Decision.)

Irrelevant considerations

Considerations are assessed to be irrelevant when they fail to satisfy the criteria of 'relevance', that is, they lack the necessary logical relationship with the decision being made. Obviously, if a matter is expressly mentioned in the Acts as a matter to which the ACMA must, or may, have regard, then it is a relevant consideration. When making a decision (and giving due regard to the contexts of the Acts) other matters will be regarded as irrelevant considerations unless they are capable of influencing the mind of a reasonable decision-maker in the circumstances of the particular case.

3. Proper purposes and bad faith

Under the Acts, a decision-maker is granted powers to make a decision. Any such decision is based, in part, on the particular 'mischief' addressed by the particular section in the Acts under consideration by the decision-maker, on the objects and purposes of the Acts, as well as the context of the Acts as a whole. A decision-maker must not seek to achieve a purpose other than the purpose for which the power to make a decision has been granted by the Parliament. Also, a decision must not be made in bad faith. For example, a decision made with the motivation to upset, or cause a loss to, a particular person for personal reasons, would be motivated by an improper purpose and be made in bad faith.

4. Findings of fact based on evidence

When making a decision that involves a finding of fact there must be sufficient evidence upon which that finding of fact may be reasonably based. This is a question of whether the finding of fact was reasonable, based on issues of logic and common sense, to a reasonable decision-maker in the circumstances. There is extensive case-law as to the standard of proof and the evidential burden in relation to the making of administrative decisions.

When making a finding of fact, the standard of proof is generally referred to as the 'balance of probabilities', not the 'beyond reasonable doubt' test referred to in criminal trials. This means that the decision-maker need only be satisfied that a particular fact is more likely, on the basis of relevant evidence, than not. However, this is subject to the important qualification that the balance of probability test may vary depending on the nature and circumstances of the decision to be made. Where the decision is likely to result in hardship, such as a decision to cancel a licence, the standard of proof may vary in that more evidence is required. In other words, the more serious the consequences of making a particular finding then the more evidence is required in order to establish the facts.

5. Reasonableness

A decision made by the ACMA must, in all the circumstances, be reasonable. This means that the decision must not be arbitrary or capricious. The reasons for the decision must have some logical basis capable of being identified and sustained. While the weight to be given to particular matters is a matter for the decision-maker, there may be some cases where undue weight given to a particular matter, or matters, to the exclusion of all others, is unreasonable. The Courts will impose their own standards as to what is reasonable in the event of a legal challenge being mounted against the making of a particular decision.

6. Procedural fairness

Procedural fairness requires that the person affected by the decision is given an adequate opportunity to make his or her case. While the applicant for a licence is obviously a person affected by a decision to issue a licence, third parties may also be affected. Any person whose interests may be adversely affected by the making of a particular decision should be given an opportunity to comment on any evidence or issues (including Government or ACMA policies) which may lead to the making of an adverse decision. It is particularly important that the ACMA affords a person natural justice in relation to his or her particular circumstances, as opposed to general considerations. This is even more important where the source of the information about the person is a third party and the person may not be aware of this information, and that it may be considered by the decision maker when reaching a decision.

It should be noted that this right to be heard usually does not require the person to be notified of all of the proposed findings of fact which the decision-maker may consider. However, any inconsistencies, particularly if they relate to credibility, are required to be put to the person who may well be able to clear them up. Any unusual findings of fact, or issues which are not readily apparent to the person may also need to be specifically raised. This does not normally require the giving of a face-to-face hearing to such persons, but merely giving the opportunity to put written submissions to be taken into account by the decision-maker prior to the making of the final decision.

Procedural fairness also requires that a decision-maker is neither biased, nor have they pre-judged the issue before them. ACMA Officers are required to keep an open mind and not reach a conclusion about a case until all of the evidence has been gathered and assessed. Decision-makers should not speculate about the possible outcomes until all of the evidence has been gathered and the decision has been made. It is permissible for the ACMA to indicate policies or other matters which may contribute to a particular decision.

7. Consideration and flexible application of government policy

It is an object of the Acts that the ACMA supports the communications policy objectives of the Commonwealth Government. However Government policy is not law unless it has actually been reflected in an Act of Parliament. Therefore, policy and other rules cannot overrule laws as set out in the Acts and any legal instruments made under them.

It is a principle of administrative law that policy matters are relevant to the making of a decision, and it is recognised that they play an important role in ensuring consistency of decision-making, provided that they are applied flexibly.

Obviously, before considering the application of the policy, decision-makers should ensure that it is, in fact, intended to be applicable to the particular circumstances of the case. Having decided that it is, a decision must be made about whether the application of the policy is appropriate in the particular circumstances before them. This means that circumstances of each case must be considered on its merits. If policy is relevant, then a person who may be affected adversely by it should be advised of the relevant policy requirements. A person's arguments should be given proper consideration and balanced against the policy. Any specific arguments as to why the policy should not be applied in the particular circumstances of the case must also be considered. It is acceptable to apply a policy, as long as the decision-maker has given real consideration to whether departure from the policy would be more appropriate in the circumstances of the particular case. Any harsh or unusual results arising from the application of the policy, which may indicate that its application would be unjust in the circumstances, should be weighed against the purpose and reasons for the policy itself. In order to apply policy fairly, decision-makers need to be aware of the underlying reasons for, and objectives of, the applicable policy.

8. Making a particular decision at the direction of another person

It is unlawful for a decision-maker to make a decision based on the suggestions or directions of another person or persons. This does not mean that other persons cannot put forward their views about the appropriate decision, however, there is no obligation for the decision maker to agree with the other person or persons.

Discretionary decisions and powers

While the above principles apply to discretionary decisions and exercising discretionary powers under the Acts, the principles are equally applicable to any non discretionary powers exercised by a decision-maker under the Acts.

A discretionary decision-making power can usually be identified by the use of the word 'may'. An example under the Radiocommunications Act 1992 is the power to issue apparatus licences in section 100(1) which provides that '...ACMA may issue to the applicant an apparatus licence...'. An example of a non-discretionary power is section 102 of the Radiocommunications Act 1992 which requires the ACMA to issue a transmitter licence if a broadcasting services bands licence has been allocated.

Steps in making a decision

The steps the ACMA follows when making decisions are summarised as follows.

Gathering of evidence

Evidence gathered can be in the form of written applications, technical reports, letters and other information which may be provided by:

  • the person who is directly affected by the decision;
  • third parties; or
  • as a result of the ACMA's own enquiries.

Assessment of the evidence

When assessing evidence the ACMA will decide how much weight should be given to the evidence to assist in the decision-making process. While it is not possible to provide an exhaustive list of the matters which will influence the weight given to particular evidence, examples include:

  • where there may be conflicting evidence;
  • the nature of the evidence (for example, a document versus actual physical evidence);
  • the source of the evidence (is it from independent or authoritative source?); and
  • the age of the evidence.

Fact(s) based on the evidence

Once the ACMA has assessed the evidence it identifies the fact(s) that are relevant to the decision being made. The fact(s) that have been assessed must be based on the evidence. Any evidence should be able to show that it is logically capable of leading to the findings of the fact(s).

Making of the decision

In relation to a non-discretionary decision, once the particular fact or set or facts has been identified, the application of the Acts dictates that the decision will be made in a certain way.

For a discretionary decision, the ACMA makes a judgment about what is the preferable decision based on:

  • merit;
  • the facts of the case;
  • the relevant legislative provisions of the Acts; and
  • taking into account any applicable policy.

Review of decisions

If a person is not happy with certain decisions made by the ACMA, he or she may apply to have the decision reviewed. Depending on the particular decision, this review may be either a merits review (by either the ACMA first and then the Administrative Appeals Tribunal) or a judicial review (by the Federal Court of Australia).

If you have any queries relating to this document, please contact the Legal Services Division at the following address:

Legal Services Division
Australian Communications and Media Authority
PO Box 78
Belconnen ACT 2616

Last updated: 22 February 2017